Losing a job is already a stressful situation. Add a work permit hanging in the balance and the prospect of having to leave your new home as a result, and things can get even worse. If you lose your job in the US and your work permit is attached to that employer, what options do you have?
Fortunately, some options are available depending on a worker’s situation and work permit category. The U.S. Citizenship and Immigration Services (USCIS) provides information for nonimmigrant workers whose employment has been terminated, either voluntarily or involuntarily.
These workers may have several options for remaining in the United States in a period of authorized stay based on existing rules and regulations. One option available to nonimmigrant workers is the 60-day grace period. Regulations make available a discretionary grace period that allows workers in certain classifications (E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN) and their dependents to be considered as having maintained status following the cessation of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter. During this period, workers may be able to maintain their nonimmigrant status if a new employer timely files a petition on their behalf with an extension of stay request. Alternatively, workers may be able to remain in the United States in a period of authorized stay if they timely file an application to change to a new nonimmigrant status or an application for adjustment of status, if eligible.
Another option available is portability to a new employer. Portability rules allow workers currently in H-1B status to start working for a new employer as soon as this employer properly files a new H-1B petition with USCIS, without waiting for the petition to be approved. Additionally, a worker with an adjustment of status application that has been pending for at least 180 days with an underlying valid immigrant visa petition has the ability to transfer the underlying immigrant visa petition to a new offer of employment in the same or similar occupational classification with the same or a new employer. This is commonly referred to as “porting.”
Workers may also use the up to 60-day discretionary grace period to apply to change their nonimmigrant status, which may include changing status to become the dependent of a spouse (e.g., H-4, L-2). Some individuals in a dependent nonimmigrant status may be eligible for employment authorization incident to status, including spouses of E-1, E-2, E-3, or L-1 nonimmigrants. Other possible nonimmigrant options to remain in the US include student status (F-1) or visitor status (B-1 or B-2). However, note that, by statute, B-1 and B-2 nonimmigrant visitors are specifically precluded from “performing skilled or unskilled labor” in the United States.
It is important to note that the timely filing of a non-frivolous application to change status will toll, or stop, the accrual of unlawful presence until the application is adjudicated. This means that if an individual files a non-frivolous application to change status before the end of the applicant’s 60-day grace period, they will not accrue unlawful presence while the application remains pending, even after the 60-day grace period has ended. Nonimmigrant workers who are unable to timely file a change of status application, or find a new employer who timely files a change of employer petition for the worker, may be required to depart the United States at the end of the grace period. To prevent this from happening, it is always a good idea to consult an immigration lawyer to assist you in your next steps.
